This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C3-96-105

Mark Frederick Winter, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed July 30, 1996
Affirmed
Parker, Judge

Ramsey County District Court
File No. K9-93-1823

Jerod H. Peterson, 2520 Park Avenue, Minneapolis, MN 55404 (for appellant)

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Susan Gaertner, Ramsey County Attorney, Mark Lystig, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

Considered and decided by Parker, Presiding Judge, Randall, Judge, and Schultz, Judge.*

U N P U B L I S H E D O P I N I O N

PARKER, Judge

Pursuant to his plea agreement, appellant Mark Winter received a stay of imposition of sentence and was placed on probation for 25 years, conditioned on 120 days in jail, payment of restitution, completion of a sex offender treatment program, and payment of a $300 fine. After serving his jail sentence, Winter petitioned for postconviction relief from the remainder of his sentence. His petition was denied. Winter appeals, arguing that he is entitled to a new trial because (1) the trial judge should have allowed him to withdraw his guilty plea and (2) his guilty plea was not voluntary and intelligent because of ineffective assistance of counsel. We affirm.

D E C I S I O N

A "postconviction proceeding is a collateral attack on a judgment which carries a presumption of regularity and which, therefore, cannot be lightly set aside." State ex. rel. Gray v. Tahash, 279 MInn. 248, 250, 156 N.W.2d 228, 229 (1968). Appellate courts "review a postconviction proceeding only to determine whether there is sufficient evidence to sustain the postconviction court's findings, and a postconviction court's decision will not be disturbed absent an abuse of discretion." Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992). "The ultimate decision [on a motion to withdraw a guilty plea] is left to the sound discretion of the trial court, and it will be reversed only in the rare case in which the appellate court can fairly conclude that the trial court abused its discretion." Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).

1. Entry of Guilty Plea

Winter argues that the postconviction court abused discretion by failing to allow him to withdraw his guilty plea and by denying his motion for a new trial. He claims that the trial court should have been alerted to the involuntary and unintelligent nature of his guilty plea based on the responses he made to the leading questions posed by his counsel. Winter argues that, once alerted to the questionable nature of his guilty plea, the trial court had a duty to inquire further as to the factual reasons why he was pleading guilty. Because the trial court failed to make such an inquiry, Winter argues, he is entitled to a new trial.

A guilty plea must be accurate, voluntary, and intelligent. State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994). The voluntary requirement ensures that "improper pressures" did not induce the plea. State v. Trott, 338 N.W.2d 248, 251 (Minn. 1983). The plea must also be intelligent to ensure that the defendant understands the charges, the rights he is waiving by pleading guilty, and the consequences of the plea. Id. "[A] trial court should accept a Norgaard plea with caution and must be certain the defendant understands his or her rights." Ecker, 524 N.W.2d at 717. [1] The trial judge, however, need not personally interrogate the defendant prior to acceptance of a guilty plea if defense counsel and the prosecutor have established an adequate factual basis for the plea. State v. Nelson, 311 Minn. 109, 110, 250 N.W.2d 816, 817 (1976). "After a guilty plea has been entered and accepted, there is no absolute right to withdraw it." State v. Robinson, 388 N.W.2d 43, 45 (Minn. App. 1986), review denied (Minn. July 31, 1986). "[A]n unqualified promise which is part of a plea arrangement must be honored or else the guilty plea may be withdrawn." Kochevar v. State, 281 N.W.2d 680, 687 (Minn. 1979); see also Trott, 338 N.W.2d at 252. The disappointment of receiving a sentence greater than hoped for is not grounds for withdrawing a plea. Kennedy v. State, 372 N.W.2d 83, 85 (Minn. App. 1985), review denied (Minn. Sept. 26, 1985).

The postconviction court found that Winter was represented by privately retained counsel at the plea hearing and that the terms of the plea agreement and the acknowledgment of possible jail time were properly read into the record. The postconviction court then noted that Winter and his counsel clarified their understanding that the state was not recommending any jail time, but it could be recommended by court services. The postconviction court found that Winter's counsel had laid a factual basis for the guilty plea and that Winter acquiesced to the factual basis and acknowledged that he had gone over the terms of the agreement. In addition, the postconviction court questioned Winter as to his understanding of the plea petition and the proceedings, and he responded appropriately. Satisfied with Winter's response to both the questions of the court and his counsel, the court concluded that Winter's plea of guilty had been voluntary and intelligent.

We hold that the plea hearing transcript reveals a clear and unambiguous understanding as to what was agreed upon. The prosecutor stated the terms of the agreement, and Winter expressed understanding and agreement with those terms. Furthermore, Winter was questioned by both his counsel and the court as to his understanding of the terms of the plea agreement and voluntariness of his plea. We are directed to no evidence in the record that would indicate that Winter's acquiescence to the agreement was feigned.

2. Withdrawal of Guilty Plea

As to the trial court's failure to allow Winter to withdraw his guilty plea, we note that the record is ambiguous as to whether a withdrawal was requested:

[Winter's Counsel]: Your Honor, I have no problem with some time. I think four months is grossly excessive if counsel would admit we were talking 30 to 60 days. I thought there ought to be no jail time. And if the court wanted to do some jail time, I thought maybe 30, possibly 60 would be appropriate. * * * We did not want to enter a plea. As the court knows this is a Norgaard plea. I would ask that either there be minimal time -- there isn't any time recommended in the impact statement by the victim or her parents, but I think 30 to 60 days would be more appropriate -- or to be allowed to withdraw the plea.

From the transcript of the sentencing hearing, it is our conclusion that Winter's request was an attempt at continuing to negotiate by a provisional request to withdraw the plea should he be denied a change from the original plea agreement presented to the court. His counsel's "recollection" of the agreement as stated at the plea hearing is contrary to the record.

Winter's disappointment that some jail time was imposed does not constitute ground to withdraw his plea. After review of the transcripts of both hearings, we cannot say that the trial judge abused discretion by refusing to allow this plea to be withdrawn.

3. Ineffective Assistance of Counsel

Winter also argues that his guilty plea was involuntary and unintelligent because he relied on misinformation provided by his counsel. Winter contends that his counsel incorrectly informed him that he would not receive any jail time or be required to enter sex offender treatment if he pled guilty and signed the plea agreement. He also claims that even though he told his counsel that he was not guilty, his counsel told him to respond, "it could have happened," to the prosecutor's questions establishing the factual basis for his guilty plea. Because Winter's counsel did not properly advise him of the consequences of entering a guilty plea, he argues, it was not voluntary or intelligent.

An accused is guaranteed the right to effective assistance of counsel by the Sixth Amendment of the United States Constitution. McMann v. Richardson, 397 U.S. 759 771 n.14, 90 S. Ct. 1441, 1449 n.14 (1970). To support a claim of ineffective assistance of counsel, the defendant must show that (1) "counsel's representation fell below 'an objective standard of reasonableness;'" and (2) "there is 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Scruggs, 484 N.W.2d at 25 (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)). When determining whether to grant a defendant a new trial based on ineffective assistance of counsel, appellate courts must apply the Strickland two-part test. Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987). Resolution of an issue of ineffective assistance of counsel does not turn on whether counsel obtained a favorable result. White v. State, 309 Minn. 476, 481, 248 N.W.2d 281, 285 (1976). Inadequacy of counsel must be flagrant where counsel has been privately retained. See State ex rel. Black v. Tahash, 280 Minn. 155, 158, 158 N.W.2d 504, 506 (1968).

The postconviction court found that Winter had not presented any evidence to show that his attorney was incompetent. The court noted many instances of a vigorous defense presented by Winter's counsel on his behalf and concluded that Winter's allegation of incompetence was unfounded.

We conclude there is ample evidence to show that Winter's trial counsel explained the terms of the plea agreement and clarified Winter's understanding for the court. The plea hearing transcript shows that Winter's trial counsel (1) made repeated inquiries into the state's promise to refrain from requesting jail time; (2) conducted a thorough examination of his client as to Winter's understanding of the agreement; and (3) argued vigorously (at sentencing) to the court to impose little or no jail time. We cannot say that trial counsel's actions of record reveal any of the deficiencies Winter alleges. Absent evidence of any flagrant inadequacy, we conclude that the postconviction court did not abuse discretion in finding that Winter was not denied effective assistance of counsel.

We note that the state in its brief raised the issue of Winter's failure to move timely for postconviction relief. In light of the foregoing discussion, we feel it is unnecessary to address the timeliness issue.

Affirmed.


Footnotes

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, ' 10.

[1] See State ex rel. Norgaard v. Tahash, 261 Minn. 106, 110 N.W.2d 867 (1961) (holding that when a defendant pleads guilty even though he or she claims a loss of memory through amnesia or intoxication, the record must establish that the evidence against the defendant is sufficient to persuade the defendant and his or her counsel that the defendant is guilty or likely to be convicted of the crime charged).